Wednesday, April 16, 2014

Drugs, plea deals, snitches, trials, and hung juries

Photo by Leo Martin
Defense attorney Terry Rose (pictured on right) just conducted some sharp cross-examination and delivered a cut-to-the-chase closing argument to get a hung jury in a drug delivery case. His trial raises several points. First, our legislature is crazy. (More on that below.) Second, a substance that is allegedly delivered to an undercover snitch should not increase in weight after the government uses up a portion of it for chemical testing. And third, government witnesses who hope to work off their own charges by testifying and burying the defendant are motivated to lie, much like a salesman is motivated to sell. 

First, let’s deal with the legislature.  Terry’s client was accused of delivering drugs three times, each time for the very small amount of less than one gram.  (Not one pound, or one ounce, but one gram.)  As minor as this may seem, our state legislature—with all of its wisdom and its burning desire to spend even more taxpayer money that doesn’t belong to it—decided that defendants in this situation should be exposed to 23 years of incarceration for each count.  That’s right: deliver less than one gram of drugs three times (under certain circumstances that are not important for our purposes) and you could be facing a total of 69 years of imprisonment.

(For those of The Dog’s readers who like to indulge in the occasional marijuana cigarette or pastry, know this: “delivery” does not mean “sell.”  Simply passing the cigarette or pastry to your smoking or snacking buddy could constitute felony “delivery,” exposing you to all kinds of life-ruining punishment.  So if this is your thing, you should move to Colorado.)

Prosecutors like these extreme penalties because they can offer to dismiss one or two counts to induce a plea to fewer charges.  Thus, they get to house the defendant on the taxpayer’s dime without having to go through a jury trial which takes up time and could even result in a not-guilty verdict.  And these extreme penalties are why so few cases are tried.  In many jurisdictions, 95 percent or more of cases are resolved by plea bargain, regardless of whether the defendant is guilty, innocent, or guilty of something far less serious than what was actually charged.  But whatever Terry’s client was offered as a plea deal, he was having none of it—a very rare scenario, indeed.

Second, Terry’s cross-examination revealed that in one of the alleged deliveries, after the snitch took the drug and then gave it to the police, it weighed .x grams (call it .4 grams just to put a number to it).  Some of the drug was then taken and tested by the police using the inadmissible and unreliable NIK test, which was positive.  The police then repackaged the now-smaller amount of the drug, and sent it off to the chemist to use a more reliable test (though the particular chemist who testified has generated false positives in the past).  The chemist then used up some more of the drug for testing, and obtained another positive test result.  But at the end of all of this testing, which would have used up a significant portion of the drug, the drug actually increased in weight to .5 grams!

The state’s witnesses tried to explain away this self-replicating drug by simply asserting that such things happen.  (This was wise; juries are often quick to ignore contrary evidence and government incompetence in order to “get the bad guy.”)  But in reality, the only explanation is that whatever the snitch claimed to have gotten from the defendant (which weighed in at .4 grams) was not the same substance that tested positive for the drug (and must have originally weighed more than .5 grams in order to weigh in at .5 grams after two rounds of testing).

Third, the snitch in Terry’s case had a pending case of his own.  While it’s common for these types of witnesses to have their own drug cases, this snitch had an armed robbery case.  And for some reason, the state thought it better to cut some slack to an armed robber provided he could “deliver” someone who allegedly sells small amounts of drugs.  But the state’s error—an error that they make repeatedly as a matter of policy—is that they don’t cut the deal with the snitch upfront.  They don’t say, for example, “Snitch, if you testify against Terry’s client, we’ll give you probation on your armed robbery.”  Instead, they refuse to offer specifics, and leave the possible benefits up to the snitch’s imagination.  This does work for the state in this sense: with visions of sugar plums dancing in the snitch’s head, he’ll want to do a really good job for the state and against the defendant when testifying at trial.  However, this approach hurts the state in this sense: the jury now knows that the snitch has visions of sugar plums dancing in his head—often huge sugar plums, as snitches think big and even hope for the outright dismissal of their own charges—and therefore has a motive to testify in a way that buries the defendant, and the deeper the better. 

So, in the end, Terry got a hung jury.  As a matter of principle, all jurors should have voted to acquit.  Drugs can’t increase in size on their own (therefore the heavier thing that twice tested positive could not have been the lighter thing that was allegedly delivered by the defendant), and witnesses looking to please the prosecutor to get out of their own armed robbery charges should not be trusted absent corroborating evidence. 

But on the other hand, I know how hard it was and what a great trial performance Terry had to “deliver” in order to get a hung jury.  I have witnessed firsthand the strong desire of some jurors to convict despite the lack of evidence, or even despite evidence of innocence.  (My own hung jury several years ago resulted from a single hold-out who insisted on voting guilty despite near absolute proof of innocence at trial.)  Sometimes, cross examination and argument are viewed as technicalities and lawyer tricks, even though they go to the heart of guilt or innocence.  After all, some people think they have the ability to “know” all sorts of things—including a defendant’s guilt—even without evidence.  

If only we had a way to test would-be jurors for this delusion before the trial begins.


  1. I can't fathom how drug evidence gains weight, in a case I had
    a few years ago, it did lose too much. What we sent, what she
    tested and what came back didn't add up. I argued to the jury
    that if they knew their pharmacist had this kind of problem with
    their heart medication, wouldn't they pause and hesitate before
    accepting it? Then ladies and gentlemen, you should pause and
    hesitate here. They did for four hours, but convicted and it held
    up on appeal. About a year later, I read in the newspaper that
    the chemist at the lab had been arrested for skimming off the
    cocaine samples she had been sent.

  2. Don, great comment. And that's my point: some jurors speculate instead of relying on evidence. It also doesn't help that the court invites them to do so by instructing them to "search for the truth," as if it can somehow be found lying under the table like a dropped set of keys. That jury instruction is in direct conflict with the "evidence beyond a reasonable doubt" instruction. That "searching" jury instruction essentially lowers the burden of proof to one of preponderance of the evidence -- or worse.